Cross-burning is among the most intimidating and vile symbols of racial hatred, and is no more free speech than yelling fire when there is none in a crowded theater. The U.S. Supreme Court should make that distinction and underscore the threat that cross-burning poses when it rules on two pending cases next year.
The Virginia Supreme Court missed the point last year when it ruled that the state of Virginia's 50-year-old law against cross-burning violates the right to free speech. Putting a cross on private or on public property and then setting it afire does not deserve to be a free speech expression protected by the First Amendment. The burning of a cross is an act akin to any show of intimidation that aims to threaten bodily harm or property damage.
The high court this week took up the case of a Virginia family that found a partially charred cross on their lawn four years ago. The interracial couple, James and Susan Jubilee, have as much right to expect the law to protect them and their four children as they would had someone broken into their home or confronted them with a weapon. Two of the Jubilees' neighbors were convicted in that cross-burning. However, the state supreme court decided 4-3 that Virginia's half-century-old state law against cross-burning violates First Amendment rights.
The U.S. Supreme Court will also review another Virginia case in which a Pennsylvania man, Barry Black, a Ku Klux Klan leader, was convicted of burning a cross at a Klan rally, even though Black had permission of the private property owner to burn the cross.
The Klan has the right to hold rallies. In a democracy, hate-mongers have the right to express their views. Cross-burning, however, when it is aimed at an individual or family, threatens and intimidates.
Let's not confuse cross-burning with flag-burning. The latter is an appalling expression, but an attack on Old Glory poses no direct harm to any one person or racial or ethnic group. Much to the consternation of many Americans, the Supreme Court 12 years ago decided that flag-burning is a form of protected speech, and despicable as the act is, the court made the right call.
But cross-burning directs hatred toward a particular group or individual members. Sometimes worse actions follow. Mrs. Jubilee expressed fear that burning a cross is “the first warning. Next, they will come back and burn the house down.”
Surely the Supreme Court will make that distinction and affirm that the racially charged act of cross-burning - when it is aimed at a specific target - is not protected speech but a criminal offense.